Ward v. Coleman

• Decision Date: 10 May 1979
• Docket Number: No. 77-1952,77-1952
• Citation: 598 F.2d 1187
• Parties: , 9 Envtl. L. Rep. 20,331 L.O. WARD, Appellant, v. William G. COLEMAN, Jr., Individually, and as Secretary of Transportation of the United States of America, Russell E. Train, Individually, and as Administrator of the Environmental Protection Agency of the United States of America, and Admiral Owen W. Silar, Individually, and as Commandant United States Coast Guard, United States of America, Appellees. L.O. WARD d/b/a L.O. Ward Oil and Gas Operations, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1187

598 F.2d 1187

13 ERC 1213, 9 Envtl. L. Rep. 20,331

L.O. WARD, Appellant, v. William G. COLEMAN, Jr., Individually, and as Secretary of

Transportation of the United States of America, Russell E.

Train, Individually, and as Administrator of the

Environmental Protection Agency of the United States of

America, and Admiral Owen W. Silar, Individually, and as

Commandant United States Coast Guard, United States of

America, Appellees.

L.O. WARD d/b/a L.O. Ward Oil and Gas Operations, Appellant, v. UNITED STATES of America, Appellee.

No. 77-1952.

United States Court of Appeals,

Tenth Circuit.

Submitted March 14, 1979.

Decided May 10, 1979.

Stephen Jones, Enid, Okl. (David Butler, Enid, Okl., on the brief), for appellant.

Michael A. McCord, Dept. of Justice, Washington, D.C. (Sanford Sagalkin, Acting Asst. Atty. Gen., Washington, D.C., Larry D. Patton, U.S. Atty., Richard F. Campbell, III, Asst. U.S. Atty., Oklahoma City, Okl., Carl Strass, Dept. of Justice, Washington, D.C., on the brief), for appellee.

Kea Bardeen, Denver, Colo. (James G. Watt, Denver, Colo., on the brief), as amicus curiae for Mountain States Legal Foundation, Independent Petroleum Ass'n of the Mountain States, and Rocky Mountain Oil and Gas Ass'n, Denver, Colo.

Harold B. Scoggins, Jr., Washington, D.C., on the brief for amici curiae Independent Petroleum Ass'n of America.

W. Bland Williamson and Terry R. Doverspike, Tulsa, Okl., on the brief for amici curiae Oklahoma Independent Petroleum Ass'n.

Fred A. Gipson, Seminole, Okl., Richard S. Roberts, Wewoka, Okl., and Richard Bohanon, Oklahoma City, Okl., on the brief for amici curiae Energy Consumers and Producers Assn.

Before HOLLOWAY, BARRETT and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

L.O. Ward (Ward) appeals from a judgment in an action seeking recovery of civil penalties assessed against him by the United States Coast Guard (Coast Guard) pursuant to the Federal Water Pollution Control Act, 33 U.S.C. § 1251, Et seq. (FWPCA).

Ward is the owner and operator of L.O. Ward Oil and Gas Operations a sole proprietorship. On March 23, 1975, oil overflowed from a drilling site located in Garfield County, Oklahoma, into Boggie Creek, which is a distant tributary of the Arkansas River. ¹

After discovering the spill, Ward immediately began clean-up operations in the area. Ward then submitted a report of the spill to the Environmental Protection Agency. The EPA forwarded the report to the Coast Guard ² requesting that an assessment of civil penalties be made against Ward in accordance with 33 U.S.C. § 1321(b)(6). On December 19, 1975, following notice and opportunity to be heard, the Coast Guard assessed a $500.00 penalty against Ward for discharging oil into navigable waters in violation of 33 U.S.C. § 1321(b)(3).

Ward refused to pay the assessed penalty. He appealed the administrative ruling, contending that the enforcement scheme of § 1321 violated his Fifth Amendment privilege against self-incrimination. The administrative appeal was denied. On April 13, 1976, Ward filed suit in the District Court to enjoin enforcement of the administratively assessed penalty. At the same time, Ward moved to convene a three-judge court pursuant to 28 U.S.C. § 2282 (repealed August 12, 1976).

On June 4, 1976, the United States filed a separate action in District Court to collect the unpaid penalty and moved to consolidate the two cases for trial. The District Court denied Ward's motion to convene a three-judge court and ordered the cases consolidated. Ward subsequently moved for summary judgment in both cases contending that his compulsory report under § 1321(b)(5) resulted in the automatic imposition of punitive sanctions under § 1321(b)(6) and therefore violated his privilege against self-incrimination.

In a memorandum opinion and order dated December 22, 1976, the District Court denied the motion for summary judgment in its entirety. Ward v. Coleman, 423 F.Supp. 1352 (W.D. Okl. 1976). The case was thereafter tried to a jury, which resulted in a verdict in favor of the Government and the assessment of a penalty against Ward in the reduced amount of $250.

On appeal, Ward contends that: (1) the trial court erred in refusing to convene a three-judge district court, and (2) the FWPCA's enforcement scheme violates the self-incrimination clause of the Fifth Amendment to the United States Constitution.

I.

Before turning to Ward's challenge based upon the self-incrimination clause of the Fifth Amendment, we must determine whether the trial court erred in refusing to convene a three-judge district court.

28 U.S.C. § 2282 requires that a three-judge court be convened in any action where a preliminary or permanent injunction is sought to restrain "the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States . . . ." ³ The purpose of § 2282 is "to prevent a single federal judge from being able to paralyze totally the operation of an entire regulatory scheme . . . by the issuance of a broad injunction order." Kennedy v. Mendoza-Martinez, 372 U.S. 144, 154, 83 S.Ct. 554, 560, 9 L.Ed.2d 644 (1963). If § 2282 applies, we must vacate the judgment and remand for consideration by a three-judge panel. See: Federal Housing Administration v. The Darlington, Inc., 352 U.S. 977, 77 S.Ct. 381, 1 L.Ed.2d 363 (1957).

It is axiomatic that before § 2282 comes into play, an injunction restraining the enforcement or operation of an Act of Congress must be sought. Flemming v. Nestor, 363 U.S. 603, 607, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). A three-judge district court need not be convened where the constitutionality of an Act of Congress is merely "drawn in question." Garment Workers v. Donnelly Company, 304 U.S. 243, 58 S.Ct. 875, 82 L.Ed. 1316 (1938).

In the instant case, a judgment for Ward in the district court would not have restrained the enforcement or operation of the FWPCA. The self-reporting aspect of the Act would not have been impaired. Likewise, civil penalties could still have been assessed provided the Government could prove its case based on evidence derived from a source wholly independent of the compelled disclosure. Cf. Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In Garment Workers v. Donnelly Co., supra, the Court observed:

"(The predecessor of § 2282) does not provide for a case where the validity of an act of Congress is merely drawn in question, albeit that question be decided, but only for a case where there is an application for an interlocutory or permanent injunction to restrain the enforcement of an Act of Congress. . . . Had Congress intended the provision . . . , for three judges and direct appeal, to apply whenever a question of the validity of an act of Congress became involved, Congress would naturally have used the familiar phrase 'drawn in question' " . . . .

304 U.S. at 250, 58 S.Ct. at 879.

See also: Flemming v. Nestor, supra, 363 U.S. at 607, 80 S.Ct. 1367.

We hold that the trial court did not err in refusing to convene a three-judge district court.

II.

As his primary ground for reversal, Ward contends that the self-reporting requirements of § 1321(b)(5) violate the self-incrimination clause of the Fifth Amendment when a report filed under that section is subsequently used to establish liability for purposes of assessing civil penalties pursuant to § 1321(b)(6).

It is, of course, fundamental that the Fifth Amendment protects only communications which are testimonial in nature, compelled and incriminating. See: Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). The report mandated by sub-part (b)(5) is testimonial in character. See: Andreasen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). Moreover, it is clear that Ward was compelled to "notify the appropriate agency of the United States Government of (the oil) discharge" under pain of criminal prosecution. 33 U.S.C. § 1321(b)(5). Such required self-reporting has consistently been held to be compulsory for purposes of the Fifth Amendment. Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968); Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Albertson v. Subversive Activities Control Board, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965).

The basic issue we must here confront is: Whether the civil penalties prescribe in sub-part (b)(6) are, in reality, criminal in nature thereby precluding use of a compelled report made pursuant to sub-part (b)(5) of § 1321.

Judicial determinations as to the civil or penal nature of a particular provision generally center around the issue of "whether the legislative aim in providing the sanction was to punish the individual for engaging in the activity involved or to regulate the activity in question." Telephone News-System, Inc. v. Illinois Bell Telephone Company, 220 F.Supp. 621, 630 (N.D. Ill. 1963), Aff'd, 376 U.S. 782, 84 S.Ct. 1134, 12 L.Ed.2d 83 (1964); Kennedy v. Mendoza-Martinez, supra; Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). In undertaking our assessment of the statutory provisions here in question, we must analyze (i) the Congressional intent discernible from the face of the statute, (ii) the enforcement mechanism of the statute, and (iii) the indicators of Congressional intent enumerated by the Supreme Court in Kennedy v. Mendoza-Martinez, supra. ⁴

Statutory Language

The FWPCA was enacted to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). In furtherance of these goals, Congress specifically prohibited the discharge of oil or other hazardous substances into the navigable waters of the United States and created a statutory enforcement scheme to carry out its mandates. See : 33 U.S.C. § 1321. Under the provisions of this...